Tuesday, 31 August 2010

The newest issue (volume 2-2, 2010) of the online journal Göttingen Journal of International Law has been put online. It includes an article entitled 'The Russian Federation, Protocol No. 14 (and 14 bis), and the battle for the soul of the ECHR', by Bill Bowring. This is the abstract:

With a focus on the Russian Federation, this article examines the adoption by the Council of Europe of Protocol No.14 to the European Convention onHuman Rights (ECHR), and its long-delayed coming into force. The author starts with the question of the original object and purpose of the Council, and how they have now changed. This leads to an analysis of the nature of the crisis – a crisis of success – now faced by the ECHR system, and the reform process which started, on the 50th anniversary of the ECHR, in 2000. After describing Protocol No.14 itself, and the discussion which has surrounded it, the article turns to the central issue. This is not the question of procedural reform, or even admissibility criteria, but what lies behind – the “soul” of the ECHR system. Should the Strasbourg Court remain a court which renders “individual justice”, albeit only for a handful of applicants and with long delays; or should it make become a court which renders “constitutional justice”? The article focuses on the specific problems faced by Russia in its relations with the Council of Europe; and an analysis of the lengthy refusal by the Russian State Duma to ratify Protocol No. 14. The author concludes with an attempted prognosis.

Friday, 27 August 2010

To appear this month: a brand new study on how international law features in the jurisprudence of the European Court of Human Rights. The book, published at Oxford University Press, was written by Magdalena Forowicz (University of Zürich) and is entitled 'The Reception of International Law in the European Court of Human Rights'). The publisher boldly (but wrongly) claims that this is the "first book to analyse the interplay between the European human rights law system and international law for 15 years." In fact, less than a year ago, a book on almost the same topic was published; see my earlier post here. Nevertheless, it is of course a very welcome contribution to an important and ongoing debate on the place of the European human rights system within public international law. This is the abstract:

The growing number of international courts and tribunals and their burgeoning case law have fuelled concerns about the fragmentation of international law. This arises as a consequence of both the specialized regimes these courts create and the multiple ways in which they may interpret international law emanating from other sources.

This book considers this issue by examining the busiest and arguably most successful international court, the European Court of Human Rights. More specifically, it focuses on the jurisprudence of the Court and its predecessor, the European Commission of Human Rights, covering a range of special human rights regimes, treaty law, and the case law of the International Court of Justice.

The author assesses whether the Court has been able to adopt a coherent, comprehensive approach to the interpretation and evaluation of international law and thus the extent to which it has been able to contribute to the development and coherence of international law.

Thursday, 26 August 2010

The 2009 volume of the German Yearbook of International Law features a contribution by Michael O'Boyle, deputy registrar at the European Court, & John Darcy, entitled 'The European Court of Human Rights: Accomplishments, Predicaments and Challenges', pp. 139-180. For those interested in comparative approaches, the same volume also includes similar essays on human rights challenges in the other regions of the world. The yearbook is unfortunately not available online, but can be found in most academic libraries. The publisher is Duncker & Humblot in Berlin.

This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.

Thursday, 19 August 2010

The Court has published two documents (a pie chart and a table) which provide a snapshot of the current state of applications at the Court. The snapshot was taken exactly halfway the year, on 30 June 2010. As the table shows the majority of pending applications is still lodged against only four countries: Russia (27.9%), Turkey (12%), Romania (8.6%) and Ukraine (8.1%). To put things in an even starker perspective: 37 of the 47 state parties together only reflect 21% of the allocated pending applications. Improvements in a very select number of states to the national capacity of the judiciary, the quality of legislation, and the rule of law more generally thus seem to be key to strengthen the human rights situation in Europe. The statistical overview shows an equally distressing picture: the number of applications is still on the rise. Compared to the first half of 2009, the number of allocated applications rose with 6% to almost 30,000 (with the total number of incoming applications of course being even higher). One can see that the Court is already trying to make big shifts in efficiency with the rise in applications allocated to Committees of three judges and to single-judge formations rising more quickly (10%) than those allocated to Chambers of 7 judges (4%). Only the full overview at the end of this year wil show whether the entry into force of optional Protocol 14 (as of 1 June 2010) has started to make a palpable difference.

Wednesday, 18 August 2010

The newest issue of the Baltic Yearbook of International Law has been published (Volume 9, 2009). It includes an article on the relation of the European system of human rights protection to national jurisdictions by Danutė Jočienė, entitled 'The Subsidiary Character of the System of the European Convention on Human Rights with Reference to Cases against Lithuania.' No abstract was available yet.

Friday, 13 August 2010

The newest issue of the Harvard Human Rights Journal (vol. 23, no. 1, 2010) features an article by Ingrid Nifosi-Sutton of American University Washington College on Law, entitled 'The power of the European Court of Human Rights to order specific non-monetary relief: a critical appraisal from a right to health perspective'. This is what the article deals with:

This article explores whether the Court's new and bold remedial strategy aimed at ordering restitutio in integrum and the adoption of legal and administrative measures, has been systematic and whether it has been applied to remedy violations of Convention rights other than the right to property and the right to liberty and security. In doing so, this article takes a right to health perspective. It analyses whether the ECtHR, between 2002 and 2009, has ordered specific non-monetary reparations concerning violations of the right to health of prisoners and detainees, arising under Article 3 of the ECHR's fundamental prohibition of torture or inhuman or degrading treatment of punishment.

Today, the article was not available electronically yet on the site of the journal itself, but it is accessible for academic subscribers through HeinOnline.

Thursday, 12 August 2010

The European Court is continuing to make clear that it will use the new criterion of a lack of a significant disadvantage for applicants (introduced by Protocol 14 ECHR) to declare cases inadmissible. In a July decision in a case called Korolev v. Russia, the applicant complained about his inability to recover 22,50 Russian Roubles (the equivalent of less than 1 Euro!) in court fees.

For the first decision on the new criterion, see my earlier post here. That decision was made by the Third Section of the Court, whereas this - later - Korolev decision came from the First Section. Interestingly, the First Section does not refer at all to the decision of its fellow Section. In addition, its reasoning is more elaborate. In the Korolev decision, the Court elaborates in muc more detail on the lack of a significant disadvantage. Importantly, it emphasizes the importance of context and even the subjective aspects of what a "disadvantage" means to an individual applicant:

The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (...). The severity of a violation should be assessed, taking account of both the applicant's subjective perceptions and what is objectively at stake in a particular case. (...) The Court is conscious that the impact of a pecuniary loss must not be measured in abstract terms; even modest pecuniary damage may be significant in the light of the person's specific condition and the economic situation of the country or region in which he or she lives. However, with all due respect for varying economic circumstances, the Court considers it to be beyond any doubt that the petty amount at stake in the present case was of minimal significance to the applicant. The Court is mindful at the same time that the pecuniary interest involved is not the only element to determine whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interest.

Money can buy more in some situations than others of course! The subjective aspect's influence should not be overestimated, however. The Court found:

The applicant's insistence on the payment of RUB 22.50 by the respondent authority may have been prompted his subjective perception that it was an important question of principle. Although relevant, this element does not suffice for the Court to conclude that he suffered a significant disadvantage. The applicant's subjective feeling about the impact of the alleged violations has to be justifiable on objective grounds. However, the Court does not perceive any such justification in the present case, as the main issue of principle was in all likelihood resolved to the applicant's advantage.

Also in other respects, this decison seems more thoroughly argued than the earlier one. Korolev will be the decision I will use in my teaching to explain the new admissiblity criterion to students.

The fact that the Court highlights such decisions in its press releases seems mainly caused by a desire to signal to both the legal community and the public at large that Strasbourg is not the place to complain about such very minor alleged human rights violations. Put differently, the "significant disadvantage" criterion is used to emphasize Strasbourg's subsidiary role in human rights protection. In the future, the Court will in all probability not reason its inadmissibility decisions for similar applications so elaborately as it did here - otherwise the whole efficiency rationale of the criterion would be lost!

The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case. This court monitors the European Convention on Human Rights (ECHR), and is among the most powerful treaty-based courts. Still, the ECtHR respects States’ discretion in the form of a "Margin of Appreciation." And it exercises what is sometimes referred to as "weak" review. That is: the ECtHR can find a law or its application to be incompatible with the ECHR, but this does not directly affect the validity of that law in the domestic legal system. Nor does the ECtHR replace such laws with one of its own making, as some forms of "strong" judicial review would.When we ask about the normative legitimacy of such laws, treaties, and bodies, different theories will approach the matter quite differently. The presentation of objections to such international review and responses to them show the implications of different ways to bring normative requirements to bear on institutions. To bring this out, the focus is on two main concerns. Such review seems to violate the commitment to political equality expressed by majority rule, and it is thought to rely on a problematic, predatory conception of human nature. Jeremy Waldron, Richard Bellamy, and others have argued these concerns, often from quite plausible normative premises concerning an individual’s sense of justice and the need to avoid domination. Section 1 presents these criticisms. Section 2 then sketches an alternative way to bring normative requirements to bear on institutional design - Liberal Contractualism - which stands in some contrast especially to that of Waldron. Three main features are laid out, to bring out weaknesses in how Waldron and Bellamy use their normative premises to assess a practice or an institution. Central to this liberal contractualism is a particular institutionalist approach, and a concern for trust-building institutions among individuals who are “contingent compliers” with a sense of justice. This account is somewhat more kindly disposed toward international judicial review of human rights, at least in principle. Section 3 then goes back to the criticisms presented in section 1, and considers the merits of each. Section 4 concludes by identifying some of the weak spots in the case for international human rights review as hitherto made.

Thursday, 5 August 2010

Earlier this year, a new journal was launched: the Irish Human Rights Law Review. In a way it is a kind of yearbook since it will be published once a year. This is what the first editorial says about the review:

A necessary part of the effort to “patriate” international human rights obligations, or at least to create a more active “dialogue” between international and municipalsystems, is a vibrant, critical discourse on the domestic legal and political significance of those instruments of human rights protection to which the State is a party. In this annual Review we will endeavour to provide a space in which these issues can be discussed in a rigorous and scholarly manner.

The first issue contains a number of case notes on ECtHR judgments and decisions, some more recent than others, but I am sure subsequent issues will focus on more recent case law as well:

Wednesday, 4 August 2010

A new book on the use of the ECHR by national judges, in a comparative perspective, also with EU law, has been published: 'The National Judicial Treatment of the ECHR and EU Laws' (Europa Law Publishing 2010). A Comparative Constitutional Perspective'. It was co-edited by Giuseppe Martinico of the Sant’Anna School of Advanced Studies and Oreste Pollicino of Bocconi Univiversity have published. It does not cover all European countries, but most of the major ones. This is the abstract:

Do national judges start treating the provisions of the European Convention on Human Rights the same way they treat the EC law’s norms? In order to answer this question the editors (Giuseppe Martinico and Oreste Pollicino) involved scholars from the countries that are members both of the EU and the Council of Europe.

The book collects the proceeding of an international conference at the Scuola Superiore Sant’Anna of Pisa (16-17 January 2010).

Tuesday, 3 August 2010

I am back after a summer break with fresh energy and a new reading notification for this blog's readers: Uladzislau Belavusau, a Ph.D. researcher at the European University Institute in Florence has published 'Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech' in European Public Law (Vol. 16/3, 2010, pp. 373-389). This is the abstract of the article:

This article provides the analysis of three recent decisions of the European Court of Human Rights on the problem of hate speech, pertinent in the context of the danger of terrorism, an infamous (anti)-immigration debate, and an extreme nationalist historical mythology (Soulas & Others v. France, Leroy v. France, Balsytė-Lideikienė v. Lithuania). The author endeavours to answer if the ‘dernier judicial design’ of these decisions is actually posing a risk of chilling effect (as some scholars have recently argued) or the earlier Strasbourg proportionality is still à la mode.

The same issue of European Public Law contains no less than five other ECHR-related articles:

* Individuals from Minority and Marginalized Groups before the Strasbourg Court: Legal Norms and State Responses from a Comparative Perspective, by Anagnostou and Millns

The obligation of states to implement the European Court of Human Rights case-law and the potential to exert influence in domestic laws and policies have been instrumental in the establishment and consolidation of the regime of human rights protection established by the European Convention on Human Rights. This article outlines a frame for exploring domestic implementation of ECtHR judgments by specifically focusing on case-law pertaining to marginalized individuals and minorities across different countries. The Court’s jurisprudence has progressively extended the scope of the civil and political rights contained in the Convention to address and at times embrace a multifaceted set of rights claims by non-dominant and marginalized groups, such as prisoners, immigrants, refugees, ethnic, religious, sexual minorities, etc. The purpose of the research introduced by this article is to comparatively explore the conditions under which state authorities implement adverse judgments pertaining to such groups, as well as to probe whether these promote rights-expansive policy change at the national level.

* Human Rights Litigation and Restrictive State Implementation of Strasbourg Court Judgments: The Case of Ethnic Minorities from Southeast Europe, by Anagnostou and Grozev

Legal action by members from ethnic minorities in Strasbourg has often been an alternative route or mobilization strategy aiming to redress broader problems beyond the individual grievances concerned and to pressure national governments to change the way they treat minorities. It is premised on a widespread, but also highly disputed, expectation that judicial rulings can vindicate minorities and exert pressure upon governments to change their relevant laws and practices. Focusing specifically on four countries of Southeast Europe (Greece, Bulgaria, Turkey, and Romania), this article explores the domestic implementation of the European Court of Human Rights (ECtHR) judgments addressing minority claims, as well as its impact (or lack of it) on the ways in which national authorities deal with minorities. Do national authorities implement Strasbourg Court judgments related to ethnic minorities, to what extent and under what conditions are they likely to do so? Does their implementation promote progressive reforms in state laws and policies towards historical minorities? What is the nature of European judicial and human rights influence – if any – at the national level?

* Litigation before the European Court of Human Rights and Domestic Implementation: Does the European Convention Promote the Rights of Immigrants and Asylum Seekers?, by Buchinger and Steinkellner

The purpose of this article is to compare the evolution and current state of European Court of Human Rights (ECtHR) jurisprudence in issues of immigration and asylum. Looking at the variable patterns of litigation and implementation across Europe, the article examines the common challenges to all States in dealing with complex questions of state sovereignty, the regulation of the entry and stay of immigrants and asylum seekers and the human rights of non-nationals. Following a description of the Council of Europe (CoE) framework in dealing with immigration and asylum issues, the article goes on to examine noteworthy case law from the Strasbourg Court, followed by a detailed account of the variable patterns and causes of litigation in different European Union Member States and the different patterns of implementation of ECtHR decisions. The article concludes with a consideration of the impact of European human rights law on the protection of the rights of individuals with an immigration or asylum background.

* Gendered Rights on the European Stage: Do Marginalized Groups Find a ‘Voice’ in the European Court of Human Rights?, by Brayson and Millns

This article examines the pursuit of gender equality rights before the European Court of Human Rights from a comparative perspective. Drawing on material from case reports from a number of European countries, this article investigates the application of Article 14 of the European Convention on Human Rights (the non-discrimination provision) to instances of gender discrimination. Using a theoretical framework of ‘intersectionality’, this article suggests that many cases that arguably have a gender component to them are not viewed as such by the European Court of Human Rights. Instead, they are treated as generic claims raising other civil or political rights and are thereby stripped of their important gender dimension. Two recent cases of the Court brought against Bulgaria (MC and Bevacqua) are, however, celebrated for a more gender specific analysis of the ‘private’ harms suffered by the victims in these cases.

* Secularism and the European Court of Human Rights, by Gülalp

This article examines the variety of State-religion relations and the place of Islam in Europe through a critical analysis of the case law of the European Court of Human Rights (ECtHR, or the Court). This examination reveals both the patterns of litigation, hence the diversity in national political cultures, and the dominant normative assumptions about religion and secularism in Europe more generally, which are implicit in the Court’s reasoning. Although the Court grants a ‘margin of appreciation’ to individual states, the margin itself seems to vary according to those implicit normative preferences. The essay argues that although neither the Convention nor the Court prescribes a normative model of secularism or State-religion relations, there still seems to be an implicit pattern whereby the Court prefers some models to others. Historically ingrained cultural assumptions about not only the division between Christianity and Islam but also between Western and Eastern Christianity appear to have played a part in the reasoning of the judges of the ECtHR.